74500 (Author at Cato Institute)https://www.cato.org/
enCTIA–The Wireless Association v. City of Berkeleyhttps://www.cato.org/publications/legal-briefs/ctia-wireless-association-v-city-berkeley-0
Megan L. Brown, Joshua S. Turner, Jeremy J. Broggi, Boyd Garriott, Ilya Shapiro
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<p>Did you know that cell phone radio frequency (RF) exposure causes cancer? It doesn’t. The Federal Communications Commission has concluded there’s “no scientific evidence” linking “wireless device uses and cancer or other illnesses.” Despite the FCC’s scientific findings, however, the city of Berkeley, California, requires every cell phone realtor provide a notice informing customers that, if they carry cell phones in a “pants or shirt pocket or tucked into a bra” when the phone is on and connected, they “<em>may </em>exceed the federal guidelines for exposure to RF radiation.”</p>
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<p>That statement is technically true; “may” just means something is possible, not necessarily likely. Phones <em>may</em> exceed federal guidelines; likewise, phones <em>may</em> spontaneously combust. What Berkeley says is technically correct, just misleading (the unexplained acronym also sounds scary). CTIA, the wireless industry’s trade group, sued Berkeley for compelling speech in violation of the First Amendment.</p>
<p>The right to speak necessarily entails the right to remain silent. This principle ensures the freedom of conscience and prevents citizens from being conscripted to serve as unwilling bullhorns for government communications. Likewise, it is a foundational principle of the First Amendment that content‐​based restrictions of speech must survive the strictest scrutiny—meaning the government needs a really good reason and can’t achieve its goal any other way.</p>
<p>But the Supreme Court has ruled that regulations of “commercial speech” need not meet the same rigorous standards of review as other types of speech. The Court created this narrow exception in <em>Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio</em> (1985). The <em>Zauderer</em> test applies lesser standards for mandatory disclosures, when the speech is “purely factual and uncontroversial information” and when the disclosure is not “unduly burdensome” and “reasonably related to the State’s interest in preventing deception of consumers.”</p>
<p>The Supreme Court previously remanded <em>CTIA v. Berkeley</em> in light of <em>NIFLA v. Becerra</em> (2018), where the Court clarified that the ambit of speech covered by <em>Zauderer</em>’s exception is narrow, and that governments did not have free reign provide scripts for commercial businesses. On remand, however, the U.S. Court of Appeals for the Ninth Circuit eroded <em>Zauderer</em>. The Ninth Circuit found that compelling speech content posed no constitutional issues because mandated disclosures need only be reasonably related to “non‐​trivial” government interests. This decision is another in a line of confused applications of <em>Zauderer</em> by the lower courts.</p>
<p>CTIA, represented by former Solicitor General Ted Olson, is again petitioning the Supreme Court to review that flawed decision. As we have at previous stages of litigation, Cato has filed an amicus brief supporting that petition. We argue that this important area of law desperately needs clarification, particularly at a time when compelled‐​disclosure regimes have proliferated and some courts have distorted the already insufficient <em>Zauderer</em> standard beyond recognition. To that end, the Court should apply strict scrutiny to review laws that force market participants to disparage their own products and participate in policy debates they wish to avoid.</p>
</div>Fri, 01 Nov 2019 08:54:26 -0400Megan L. Brown, Joshua S. Turner, Jeremy J. Broggi, Boyd Garriott, Ilya Shapirohttps://www.cato.org/publications/legal-briefs/ctia-wireless-association-v-city-berkeley-0CTIA–The Wireless Association v. City of Berkeleyhttps://www.cato.org/publications/legal-briefs/ctia-wireless-association-v-city-berkeley
Megan L. Brown, Joshua S. Turner, Stephen J. Obermeier, Jeremy J. Broggi, Bethany A. Corbin, Ilya Shapiro
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<p>Residents of Berkeley, California are a little bit scared about potential radio‐​frequency exposure from cellphones. Despite the FCC’s conclusion that there’s “no scientific evidence” linking “wireless device use and cancer or other illnesses,” the city mandated that any party buying or leasing cellphones communicate a specific message to every customer about radio‐​frequency exposure. Getting bad vibes from that requirement, CTIA (the wireless industry’s trade group) sued Berkeley for violating the First Amendment by compelling that speech.</p>
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<p>It’s a cornerstone of First Amendment law that the right to speak necessarily entails the right to remain silent. This principle ensures the freedom of conscience and prevents citizens from being conscripted to serve as unwilling bullhorns for government communications. Likewise, it is a bedrock principle of First Amendment law—recently affirmed by the Supreme Court—that content‐​based restrictions of speech must survive the strictest scrutiny to pass constitutional muster.</p>
<p>Unfortunately, these rules don’t apply with the same force to regulations of “commercial speech,” which the Supreme Court has ruled need not meet the same rigorous standards of review as other types of speech. In a 1985 case called <em>Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio</em>, the Court went further and created an additional narrow exception. <em>Zauderer</em> allowed courts to apply less rigorous scrutiny when analyzing the constitutionality of disclosures of “purely factual and uncontroversial information” when mandated in an effort to combat misleading commercial speech. The <em>Zauderer</em> standard also requires that any disclosures not be “unduly burdensome” and be “reasonably related to the State’s interest in preventing deception of consumers.”</p>
<p>In ruling against CTIA, the U.S. Court of Appeals for the Ninth Circuit further eroded that already lax standard of judicial review. Instead of requiring Berkeley to show a need to combat consumer deception — and how the mandated disclosure provision alleviates that need — the Ninth Circuit skipped right over <em>Zauderer</em> to find that compelling speech content posed no constitutional issues because mandated disclosures need only be reasonably related to “non‐​trivial” government purposes. This dangerous dilution would allow government entities to compel a nearly unending amount of speech on any number of controversial topics, even if the compelled script was itself misleading.</p>
<p>CTIA is now petitioning the Supreme Court to review that flawed decision. The Cato Institute, joined by the Competitive Enterprise Institute and Cause of Action Institute, has filed an amicus brief supporting that petition.</p>
<p>This important area of law desperately needs clarification, particularly at a time when compelled‐​disclosure regimes have proliferated and some courts have distorted the already insufficient <em>Zauderer</em> standard beyond recognition. To remain faithful to the First Amendment and the Court’s jurisprudence on compelled speech and content‐​based speech regulations, courts should apply strict scrutiny — meaning the government needs a really good reason and can’t achieve its goal any other way — to review laws that force market participants to disparage their own products and participate in policy debates they wish to avoid.</p>
</div>Tue, 30 Jan 2018 16:33:00 -0500Megan L. Brown, Joshua S. Turner, Stephen J. Obermeier, Jeremy J. Broggi, Bethany A. Corbin, Ilya Shapirohttps://www.cato.org/publications/legal-briefs/ctia-wireless-association-v-city-berkeley